STATE OF NEW YORK
INSURANCE DEPARTMENT25 BEAVER STREET
NEW YORK, NEW YORK 10004

George E. Pataki
Governor

Howard Mills
Acting Superintendent

The Office of General Counsel issued the
following opinion on January 20, 2005, representing the position of the New York State
Insurance Department.

Re: Health Insurance, Domestic Partners

Issue:

Does New York permit health insurers to
cover domestic partners under a group health insurance policy or contact issued to an
employer?

Conclusion:

Such coverage is permitted, but is not
mandated and the decision as to whether such coverage is offered resides with the
employer.

Facts:

No facts are provided.

Analysis:

New York Insurance Law § 4235(c)(1)(A)
(McKinney 2000 and 2005 Supplement) authorizes the issuance of a group health insurance
policy to employers covering their employees. New York Insurance Law § 4235(f)(1),
regulating policies of commercial insurers, provides:

Any policy of . . . group health . . .
insurance may include provisions for the payment by the insurer of benefits for expenses
incurred on account of hospital, medical or surgical care . . . for the employee or other
member of the insured group, his spouse, his child or children, or other persons
chieflydependent upon him for support and maintenance . . . . (emphasis added)

New York Insurance Law § 4305(c)(1)
(McKinney 2000 and 2005 Supplement), regulating contracts of not-for-profit insurers and
all Health Maintenance Organizations, has similar language.

New York does not recognize common law
marriage, New York Domestic Relations Law § 11 (McKinney 1999). However, the New York
Insurance Law (McKinney 2000 and 2005 Supplement) recognizes a "chiefly
dependent" standard. Dependence includes both unilateral dependence and mutual
interdependence, which may be evidenced by a nexus of factors, including common ownership
of property, common house holding, shared budgeting or length of relationship. The
registration of a domestic partnership, such as is authorized by New York City
Administrative Code § 3-420 et seq. (1999), would constitute strong evidence of
mutual interdependence.

While an insurer may, if requested by the
employer, issue a policy covering domestic partners, the employer is not compelled to
request such a policy. A refusal by an employer to provide such coverage is not a
violation of the New York City Human Rights Law, New York City Administrative Code §
8-101 et seq. (1999). Rios v. Metropolitan Transportation Authority, New York Law
Journal December 28, 2004 (Sup. Ct. Richmond County).

Health insurance for Federal employees is
provided pursuant to the Federal Employees Health Benefits Act (FEHBA), 5 U.S.C. 8901 et
seq. (West 1996 and 2003 Supplement), which is administered by the United States
Office of Personnel Management (OPM). Coverage under FEHBA is provided both by insurers,
which must, 5 U.S.C.A. § 8902(b) (West 1996), be licensed in all states and the District
of Columbia, and by employee organizations on a self-funded basis. Pursuant to FEHBA, 5
U.S.C.A. § 8902(m)(1) (West 1996), the provisions of such coverage is specifically exempt
from state law.

Accordingly, while New York would permit an
insurer to cover domestic partners, it does not require such coverage by employers and
could not require such coverage for Federal employees. It is suggested that the personnel
office be consulted to find out what is permitted by OPM under FEHBA coverage.

For further information you may contact
Principal Attorney Alan Rachlin at the New York City Office.